With exclusive sovereignty over the airspace above their territories, States have the responsibility and authority to close their airspace where certain safety threats may warrant that action.
by Dr. Ruwantissa Abeyratne in Montreal
There are known knowns, things we know that we know; and there are known unknowns, things that we know we don't know. But there are also unknown unknowns, things we do not know we don't know.” ~ Donald Rumsfeld
What Donald Rumsfeld did not say explicitly is that there are also things we ought to have known. Perhaps these are the known unknowns he is referring to. One of the first things law school taught me nearly 50 years ago is that a person is guilty of an offence if he knew the outcome of a result of his act that harmed another, or he ought to have known of the grave probability of the result of his act. In simple tort law terms this is called negligence which, in aviation parlance, is called gross negligence – negligence that is attributable to persons who are given the responsibility of ensuring the safety of those in their care.
With less than three weeks to go for this year to end and unless something catastrophically happens that is man-made, the downing of Ukraine International Airlines Flight PS 752 over Iran which killed all persons on board would remain the most egregious act against humanity known to have been volitionally caused (barring of course the senseless killing resulting from political unrest, bigotry, and ineptitude) over the past two years during this pandemic period.
On January 8, 2020, the Islamic Republic of Iran’s Islamic Revolutionary Guard Corps (IRGC) shot down Ukraine International Airlines Flight 752 shortly after it took off from Imam Khomeini International Airport in Tehran.
On June 24 2021 The Government of Canada released its report on the tragedy entitled “The Downing of Ukraine International Airlines Flight 752: Factual Analysis” which says inter alia: “First, Iranian authorities had the opportunity and responsibility to put in place a plan to ensure the safety of its airspace following the Iranian attack on US positions in Iraq and the expectation of a counterstrike. The Forensic Team assesses that this would have been discussed at a high level. Iran positioned anti-aircraft systems on high alert directly adjacent to an international airport, and despite these proximate military threats, the decision was made not to close the airspace over Tehran. Information suggests that senior Iranian civilian and military decision makers prioritized defence over the safety of civilian air traffic.
Iran contends that its decision to keep its airspace open and its corresponding airspace management decisions were justified and based on sound risk assessment. Iran’s risk assessment, as presented in the Final Report, failed to address contradictory information suggesting that risk levels were much higher. Iran’s air defences represented a clear and present danger. Its military was on high alert and tasked with monitoring airspace where multiple civilian aircraft would be present. Iran implemented a single mitigation measure that required military pre-authorization for flights before take-off from Imam Khomeini International Airport (IKA). Iran’s determination that the risk was “low,” the decision to keep its airspace open over Tehran, and the implementation of only one preventative measure were all flawed decisions. It is the Forensic Team’s assessment that this fell short of internationally recognized standards in place to ensure airspace safety.
Furthermore, Iran did not provide official notification of the increased risk to airlines and pilots before Flight PS752 departed or adequately explain why this basic measure was not implemented. Iranian military authorities were the only ones who were aware of the recent military activities and high alert resulting from Iran’s launch of missiles into Iraq. Only they knew that SAM units had been deployed in proximity to an international airport. Despite having knowledge of International Civil Aviation Organization guidance from 2018 with respect to “conflict zones,” Iran chose not to notify airlines of this danger (my emphasis). This lack of pertinent threat-related information deprived airlines (such as Ukraine International Airlines) of the full and up-to-date picture of conditions necessary to determine whether it was safe to fly”.
I have stringently maintained in my classes on aviation law and policy that the greatest affliction in the air transport world is the lack of communication between parties involved in assuring the safety of the travelling public. A few days ago I followed an informative webinar involving an expert panel on Canada’s Safer Skies initiative where Transport Canada says “People travelling from one part of the world to another should have confidence that they will not be exposed to safety and security risks that conflicts pose to civilian flight operations. Through the Safer Skies Initiative, Canada is working with international organizations, the civil aviation industry, and the International Civil Aviation Organization, to enhance the level of safety and security for commercial airlines travelling in higher risk areas and to prevent future tragedies”.
The panelists emphasized that timely, reliable, and comprehensive information sharing was key to ensuring the safety of passengers. Under this initiative has been formed the Safer Skies Forum which is an international forum focused on conflict zone risk management. It brings together expert partners from countries and regions around the world, international organizations, and the civil aviation industry. The first Safer Skies Forum took place virtually from December 8-9, 2020. This is intended to become an annual event to keep the momentum and dialogue going with a view to sustaining ongoing efforts and collaboration towards ensuring safer skies.
The International Civil Aviation Organization correctly maintains that as a matter of best practice, in the presence of threats from a conflict zone — which is considered a reportable hazard for air navigation —information as specific as possible should be shared regarding the nature and extent of threats arising from the conflict and its consequences for civil aviation. In pursuance of this position States should strictly adhere to Article 9 of the Chicago Convention of 1944 which gives them the ability, for reasons of military necessity or public safety, to restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged.
With exclusive sovereignty over the airspace above their territories, States have the responsibility and authority to close their airspace where certain safety threats may warrant that action. Aircraft and airline operators are responsible for assessing global airspace risks communicated by States, and/or third parties, before deciding where they fly. Consequent upon a similar tragedy in July 2014 where Flight MH 17 was shot down by a missile fired by rebels over a dangerous conflict zone in Eastern Ukraine, ICAO’s Task Force established the same year came out with recommendations to assist States and airlines with a more effective means of sharing risk information.
The problem is that none of this is taken seriously when it comes to the spontaneous combustion of human conflict and revenge. For those of us who believe that global collaboration is necessary for safety in aviation no persuasion is necessary. Yet, for those who do not believe in collaboration and best practices, no persuasion is enough.
Dr. Abeyratne is the author of War and Peace – The Aviation Perspective (America Star Books: March 9, 2012)
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